2017 PLP 1560 (MLD)

RAJA SAEED AKRAM KHAN, J.

This appeal has been directed against the judgment and decree of the High Court dated 28.05.2015, whereby the appeal filed by the respondents, herein, has been accepted.

2. The facts necessary for disposal of this appeal are that the land of the respondents comprising survey Nos.753 and 753/1, measuring 11 kanal 17 marla, situate at village Mumnal Bandor, Tehsil and District Mirpur was acquired for Mangla Dam Raising Project. The Collector Land Acquisition determined the market value of the land as Rs.4,00,000/- per kanal while treating its kind as mera awal. The predecessor of the respondents filed a reference application for enhancement of the compensation. The learned Reference Judge after necessary proceedings dismissed the reference application on the sole ground of nonappearance of the petitioner-landowner in the witness-box. The landowner feeling dissatisfied from the judgment and decree of the Reference Judge filed appeal before the High Court. The learned High Court while accepting the appeal enhanced the compensation amount from Rs.4,00,000/- per kanal to Rs.7,00,000/- per kanal vide impugned judgment and decree dated 28.05.2015, hence, this appeal.

3. Mr.Javaid Najam-us-Saqib, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court is against law and the facts of the case which is not sustainable in the eye of law. He submitted that the learned High Court failed to adhere to the fact that in support of the reference application, the landowner did not appear before the Court for recording his statement; moreover, no such prayer was made in the reference application for enhancement in the compensation amount. In such situation, there was no occasion to make the enhancement in the compensation. He added that the learned Reference Judge rightly dismissed the reference application on the ground of non-appearance of the landowner in the witness-box. The landowner also failed to bring on record any plausible evidence to substantiate his claim that the market value of the acquired land was Rs.7,00,000/- per kanal at the time of acquisition. The learned High Court committed a grave illegality while setting aside the well reasoned judgment of the Reference Judge.

4. On the other hand, Raja Inamullah Khan, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. While meeting the first argument regarding the dismissal of the reference application on the ground of non-appearance of the landowner in the witness-box, he submitted that personal appearance of the landowner is not requirement of law. The landowner was duly represented by counsel and also produced unrebutted oral as well as documentary evidence in support of his claim. The claim of the landowner was admitted by the learned Reference Judge but relief has not been granted mere on the ground that he did not record his statement as a witness; therefore, the learned High Court was fully justified to enhance the compensation. He relied upon the cases reported as Muhammad Suleman v. Mst. Razia Bi and others [1992 SCR 265], Mst. Farooq Bibi v. Abdul Khaliq and 26 others [1998 SCR 244] and Abdul Latif v. Safarish Ali Khan 2004 YLR 1663.

5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. While attending the first argument which has forcefully been argued by the learned counsel for the appellants that the reference was rightly dismissed by the Reference Judge on the ground of nonappearance of the landowner in the witness-box, it may be stated that under Land Acquisition Act, 1894 no such provision is available which may make obligatory that the landowner must appear in the witness box. Even otherwise, it is well settled principle of law that if a case is otherwise proved the mere fact that a party did not put itself in the witness box, cannot detract from the other proof on the record. In this regard, the learned counsel for the respondents has rightly relied upon the case law reported as Muhammad Suleman v. Mst. Razia Bi & others [1992 SCR 265]. Moreover, it is also spelt out from the record that the landowner duly engaged a counsel who got recorded his statement and also produced the documentary as well as oral evidence. In such state of affairs, we are not impressed by the argument of the learned counsel for the appellants that the Reference Judge rightly dismissed the reference application on the ground of non-appearance of the landowner in the witness-box. The learned High Court while referring to the correct law has rightly held that nonappearance of a litigant party in the witness box is not fatal if the case is otherwise proved, therefore, we fully endorse the findings recorded by the High Court.

6. While adverting to the merits of the case, we carefully examined the record. It appears from the impugned judgment that the learned High Court while enhancing the compensation has not discussed the evidence available on record in detail, however, in the interest of justice, we ourselves have taken the pain and examined the whole record. The record reveals that the notification under section 4 of the Land Acquisition Act, 1894 was issued on 17.07.2006, whereas, the award through which the land of the respondents was acquired was announced on 14.05.2007. According to the material available on record, in the relevant period, i.e. immediately after issuance of the notification under section 4 of the Land Acquisition Act, 1894 or prior to the issuance of the same, no sale-deed was executed in the vicinity from where the land of the respondents was acquired. In such situation, when there was no sale-deed found executed in the relevant village, the sale-deeds executed in the adjacent villages could be relied by the Collector for determining the compensation as has been held by this Court in a case reported as Muhammad Mehrban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, Mirpur and 3 others [2013 SCR 635], that:-- "

6. Sections 23 and 24 of the Land Acquisition Act are relevant for determining the compensation to be awarded for the land acquired. The best evidence in determining the compensation can be the sale-deeds executed in the village, but when there is no sale-deed executed in that village, the sale-deeds executed in the adjacent villages can be relied upon by the Collector for determining the compensation." In the case in hand, it appears from the record that although the Collector Land Acquisition while adopting the proper mode considered the sale-deeds executed in the adjacent village, however, the compensation has not been determined on the strength of said sale-deeds. In this regard, the reasons assigned by the Collector are that one of the sale-deeds was executed at very low rates on the decision of Panchait, whereas, through the other sale-deed the land was sold for commercial purpose. The Collector Land Acquisition also recorded the findings that the prices of the lands in the village are very high due to the strong financial condition of the people, etc. The relevant portion of the findings reads as under:-- One of the witnesses, produced by the landowner, Daswondi Khan Chaudhary, while recording his statement has clearly deposed in cross-examination that the property sold in the adjacent village through sale-deed discussed in the award was not of commercial nature rather the same was situated away from populated area and sold for residential purpose. The relevant portion of the statement reads as under:-- In rebuttal the appellants, herein, has not produced an iota of evidence. The learned Reference Judge while recording his findings has also observed that the compensation determined by the Collector was inadequate but on the other hand illegally dismissed the reference application on the ground of non-appearance of the landowner in the witness-box. For better appreciation the relevant findings of the Reference Judge are reproduced here which read as under:-- "

15. However, I can't lose sight of the fact, that the petitioner was expropriated of his land at ruthless hands of the Collector. There is nothing on record to believe, that either the petitioner voluntarily consented to the award proceedings or acquiesced to the impugned price. The prices of the lands are going up day-by-day whereas, on the other hand, in wake of a rampant inflation value of the currency is plummeting in the Forex-Market. Moreover, the unrebutted oral account of the witnesses was reflective of the fact, that impugned price was inadequate. Therefore, keeping in view aforenarratd extenuating circumstances of the case and the evidence, I am inclined to award a compensation in favour of the petitioner. A perusal of P.B. reveals, that the Collector considering kind of the land Maira Awal, measuring 11 kanal 17 marla assessed its price in sum of Rs.4,00,000/- P.K. which would therefore now, be deemed enhanced to tune of Rs.4,60,000/- P.K. Hence, this issue is also decided in favour of the petitioner." The aforesaid findings of the Collector have also not been challenged by the appellants at the proper forum which have attained finality. One of the claim of the landowner was that the kind of the acquired land was hail, whereas, the same has wrongly been entered in the award as maira awal. In this regard, the reports of the Patwari/Naib Tehsildar, are available on record as Exh.PC. which support the version of the landowner. Keeping in view all these aspects of the case, we are convinced that the learned High Court has rightly enhanced the compensation and has not committed any such illegality which may call for any interference by this Court. In view of the above, finding no force this appeal stand dismissed. No order as to costs. ZC/39/SC(AJ&K) Appeal dismissed.